Effects of NOT leaving either a Will or a valid will
Lockdown sparks rise of do-it-yourself will writing
The Saturday Telegraph (14th Nov 2020) reported that searches on Google for “DIY Wills” had risen by more than 1500%.
However, it was pointed out that DIY will writers MUST ensure they follow ALL the legal requirements, failure to do so could store up problems for loved ones down the line.
For a will to be valid, it needs to be signed by the person involved, in the presence of TWO independent witnesses, without this it can be challenged.
Because of Covid, the witnesses and the writer need a clear line of sight of each other but necessarily in the same room, it means that signing can take place through a window or on a porch.
In addition, currently until 31st Jan 2021, FOR EXCEPTIONAL circumstances only, “video witnessing” is allowed.
For those who are isolating or too sick to sign their own will, they can appoint another person to do it in their place as long as they have read it themselves OR had the full document read out to them.
However all these options, if done remotely without professional advice, can be open to more challenges.
THE EFFECTS OF NOT LEAVING A WILL OR A VALID WILL
If you die without leaving a will or a will which is not valid (correctly and legally drawn up) – you are legally known as having died “intestate”.
IN THESE CIRCUMSTANCES, HAVING NOT LEFT A WILL nor A VALID WILL, YOUR ESTATE WILL PASS IN ACCORDANCE WITH STRICT INTESTACY RULES LAID DOWN IN LAW.
However, it must be noted that all Assets held in joint names pass automatically to the other joint owner(s) and do not form part of your estate.
(Which could mean any of your assets, not held in joint names, are not distributed as you might have wanted or thought would happen)
The following are circumstances, where matters under the Intestacy Rules, as examples, would proceed very differently to what you might have intended.
You are living together (but are not married or in a civil partnership) but would have wished your partner to inherit some or all of your estate.
You have no living relatives but would have wished to leave your estate to your friends or to a charity or charities.
You are married or in a civil partnership and did not intend that your spouse/civil partner should inherit anything.
You are married or in a civil partnership and have children from a previous relationship and would have wished to control how much your children receive from your estate and when.
You have dependent relatives e.g. Children under the age of 18, elderly relatives or relatives with a disability who have special needs and you would want to have made sure that they are looked after and provided for.
Your estate is large and could be liable for Inheritance Tax and you might have wished to see the Beneficiaries make arrangements for tax planning by using for example, a Deed of Variation (https://www.gov.uk/alter-a-will-after-a-death).
You have Children under 18 and you would have wanted to appoint guardians to look after your children and set up a Trust(s) to provide for those dependents.
You have absolutely NO surviving relations (as per 4 below) then you have wanted to choose a charity or Charities, so the Crown does not take it.
Under the Intestacy Rules, none of those options apply.
INTESTACY RULES
The Intestacy Rules are concise and clearly laid down, as to who will inherit from your estate, when you do not leave either a will or a valid will.
Your money and possessions will be distributed according to the Intestacy Rules laid down in the Administration of Estates Act 1925.
The Intestacy Rules have been updated with the Inheritance and Trustees’ Powers Act 2014 coming into effect on 1st October 2014. These changes apply to England and Wales only and not Scotland or Northern Ireland.
IN SIMPLE TERMS, THE RULES EFFECTIVE FROM 1ST OCTOBER 2014 ARE AS FOLLOWS:
ASSETS NOT COVERED BY THE INTESTACY RULES
All Assets held in joint names pass automatically to the other joint owner(s) and do not form part of your estate.
(However, if you are unsure about the type of joint ownership you share with another, you should consider seeking legal advice).
Circumstances applying at the time of your Death, without a will or a valid will: -
1. If you are married, or in a civil partnership (the Civil Partnership Act 2004 came into effect on 5th December 2005 and gave same-sex couples the right to register their partnerships, giving them broadly the same legal rights as married couples)
a. The first person entitled to your estate under the Intestate Rules is your spouse/civil partner.
b. But he or she will not necessarily inherit the whole of your estate.
c. The amount your spouse/civil partner would inherit depends on how much is in your estate and which of your blood relatives survive you.
2. If you die without having a Surviving Spouse or Civil Partner
With NO surviving children or other relatives - everything passes to your spouse or civil partner.
If you have surviving children - your spouse or civil partner receives the chattels (personal belongings, household goods, jewellery, antiques and paintings) and they will also receive a legacy of £270,000 and half the remainder of the estate. The other half of your estate will pass to your children absolutely or held for them in a statutory trust until they reach the age of 18.
3. If you die and have NO Surviving Spouse or Civil Partner
Your children will share everything.
If any of your children have not survived, their own children (i.e. your grandchildren) will inherit their share.
4. If you die and have No surviving Spouse or Civil Partner nor any Surviving children or other Direct Descendants (Inc. Great Grandchildren)
The rules for this scenario are that 100% of your estate will be inherited by your other surviving relatives in the following order:
• Your parents.
• Your brothers and sisters of the whole blood, or their children if your siblings have not survived you.
• Your brothers and sisters of the half blood, or their children if there is no surviving parent.
• Your grandparents.
• Your uncles and aunts of the whole blood or their children.
• Your uncles and aunts of the half blood or their children.
Examples
You do have Parent(s) surviving – they will receive 100%
You have no parents surviving, they are no brothers or sisters nor half brother or sister and therefore there are no children or siblings, but you do have a Grandparent surviving – they will get 100% of the Estate.
5. If you have absolutely no relatives as per the above list
The Crown will take everything.
